Secession on Trial: The Treason Prosecution of Jefferson Davis by Cynthia Nicoletti (review)

As noted in Cynthia Nicoletti's deftly written and deeply researched book Secession on Trial: The Treason Prosecution of Jefferson Davis, most scholars believe that the Confederacy's defeat delegitimized secession as a constitutional argument. Nicoletti contends that though the Union was restored in 1865, the Civil War failed to resolve the question of secession's constitutionality, leaving it "at base a legal question . . . in the war's immediate aftermath" (p. 5). No event, in Nicoletti's estimation, illustrated this question more than the treason prosecution of Confederate president Jefferson Davis. Nicoletti demonstrates how this question occupied the minds of President Andrew Johnson's administration and of congressmen, as they either feared that Davis's potential trial might afford secession judicial sanction (thus overturning the verdict of the battlefield) or, in the case of Radical Republicans such as Thaddeus Stevens, hoped to illustrate that despite secession's illegitimacy, the Confederate states had exercised this right. This judgment would lend credence to the Radicals' desire to treat the South as a conquered province during Reconstruction.

Nicoletti chronicles how, by 1868, federal officials had opted not to try Davis, largely because of the masterful legal posturing of Charles O'Conor, Davis's defense attorney. O'Conor wanted to spare Davis's life and worked to convince the prosecution that secession stood on firm legal foundation. Federal officials avoided trial, since a judicial vindication of secession might have rendered in vain the sacrifice of more than 700,000 Americans and as inconsequential the defeat of secession in "trial by battle" (chap. 4).

Nicoletti's work reconceptualizes the conventional scholarly wisdom that the Civil War delegitimized secession, but it raises the question of Americans' understandings of popular versus formal justice and the legality of secession at that historical moment. Radical Republicans considered Johnson's Reconstruction policy lenient; as Nicoletti notes, Johnson received at least 15,000 applications for pardon in the two years after the war ended, and he issued more than 13,500 pardons. Johnson's actions excused the political offense of supporting the Confederacy—in essence, secession—which equated to an acknowledgment that secession had been defeated.

Given this context, the question of the extent to which Davis's potential trial might have inspired the public to second-guess the Union victory remains. Nicoletti's work shows that this issue deeply concerned men versed in the intricacies of law, especially those involved in Davis's case. But the American public, in a nation originally born through secession, would likely have honored the war's outcome, given their understanding of "trial by battle" and knowledge of the popular constitutionalism that begot their own nation. Resolution by war, as Nicoletti notes, "bypassed the legal institutions that made ordered liberty possible in a democratic system" (p. 119). This outcome was perhaps acceptable to Americans, since the federal government played a minimal role in criminal matters in the nineteenth century, and the existing constitutional order, as Elizabeth Dale has noted, "empowered popular justice often at the expense of the rule of law" through the Civil War (Dale, Criminal Justice in the United States, 1789-1939 [New York, 2011], p. 2). Here, Nicoletti should clarify how and why war heightened Americans' desire for the rule of law in an era that, for the remainder of the century, continued to witness tension between formal and popular notions of justice. The facts that Davis's prosecution ended in late 1868 with a "whimper," that the public believed "pursuing a judicial confirmation of the verdict of the battlefield . . . was a futile endeavor," and that Chief Justice Salmon P. Chase in Texas vs. White (1868) issued only a "perfunctory" statement on secession's illegality perhaps indicate that, while this denouncement of secession was calculated, it paled in comparison to the war's outcome (pp. 308, 316). This outcome...